|
|
|
|
 |
 |
|
|
overview Easy
catch Editorial opinion Dissenting
notes
overview The Arsalan Iftikhar-Malik
Riaz matter was tricky, to begin with. The details were initially uttered in
whispers. For weeks, it remained in a territory where even the anchors
feared to tread (though they were the ones to whom the details were first
divulged). It was brought into the legal domain by none other than the chief
justice himself and his two comrades on the bench. Thereafter, it came to be
referred to as the Arsalan-Malik Riaz “case”. The son of the chief
justice of the country being implicated in financial wrongdoings and that
too by a ‘discredited’ property tycoon was no mean matter; no wonder it
remained controversy-prone, with two judgments and a couple of stay orders
issued in the last three months not helping the case of either party, least
of all the country’s judiciary. As per the latest
development, the Supreme Court has intervened on a review petition filed by
Dr Arsalan, scrapping the NAB inquiry, and appointing a one-man inquiry
commission instead, comprising Dr Muhammad Shoaib Suddle who is serving as
the Federal Tax Ombudsman (FTO) to investigate into the matter. This decision of the
Supreme Court, like the earlier one in this case, has been subjected to
criticism on many levels, the crux of which is that the matter would have
proceeded entirely differently if one of the parties was not Dr Arsalan. The case itself has
brought into sharp focus the larger question of judiciary’s reluctance to
allow its own accountability, its self-righteousness as well as its tendency
to act as a united front that some might like to call a clique. With a significant number
of commentators and legal minds rejecting the Shoaib Suddle Commission as
fully capable of conducting an impartial investigation for various reasons,
one wonders if there’s any man or agency left in the country that can
investigate the Arsalan-Malik Riaz case independently and to everyone’s
satisfaction. Beyond the question of
restoring the credibility of the chief justice, a legitimate concern for
some quarters, one wonders if the parties themselves are interested in
proceeding with the case. All said and done, the
case is upon us, with the two decisions of the Supreme Court having long
term implications for the country’s polity as well as our constitutional
jurisprudence. Whether the issue should have been referred to the National
Accountability Bureau (NAB) in the first place is debatable and there
clearly are two opinions about it. But once it was done, the inquiry could
not have been so easily taken away from the NAB as per the NAB law; unless,
of course, a motive or bias was ascribed to the person who suggested it,
namely the attorney general. This should take us back
to the first decision of the Supreme Court where, after having duly praised
the judiciary, it was decreed that “the matter of public importance in
this case was the aspersion cast on the independence and integrity of the
superior judiciary of this country”. But since the statement of Malik Riaz
absolved the judiciary, according to the judgment, the substantive part of
the decision was stated at the end in merely two sentences. “While this
suo motu action has been brought to an end in view of the material
considered above, the learned Attorney General who has assisted us in this
case is fully abreast of all aspects of this case. It is our expectation
that he will set the machinery of the State in motion so that all those who
may have committed any illegal acts, including… Malik Riaz Hussain, Dr.
Arsalan, Salman Ali Khan etc. are pursued and brought to book with the full
force and rigour of the law”. This, to a layperson, is
as vague as vague could be. It must be recalled that
the attorney general, who has been discredited in the latest judgment on
various counts, including for writing the letter to chairman NAB to “set
the machinery of the State in motion”, was not a party to the dispute, nor
was the federal government. He was called upon by the Supreme Court after it
took suo motu action in the case to assist the court. “I was woken up and
informed about the notice in the middle of the night by a friend, and in the
morning, the first day of hearing of the suo motu case, I was totally blank
about what my role in the case would be,” says Attorney General Irfan
Qadir. “When the judges spoke at length about restoring the dignity of
judiciary, I humbly reminded them of Article 4 of the Code of Conduct,
suggesting that propriety demands that the CJ should not be sitting on the
bench. This, I thought, was not taken very well by the court.” The attorney general’s
advice was heard two days later and the chief justice recused himself from
the bench. After Bahria Town’s accounts were scrutinised, he was again
called on the rostrum to give his opinion. “I said that Arsalan Iftikhar
is entitled to fair trial and suggested that the case be sent to NAB. I
spoke candidly about the NAB law and the court never disagreed with me and
announced the order about setting the law in motion with full force.” He then wrote the letter
as per his role that became a subject of scrutiny in the last judgment. “I
could have objected, said that the order was void and it was not my function
to set the law in motion. The reason why I did not was because it would have
been made into a big issue, and reinforced my image as a ‘difficult
person’ as portrayed by a section of the media,” says Qadir. Lawyer Saad Rasool, who
has defended the attorney general’s letter and dismissed the Supreme
Court’s decision suggesting that the letter aimed to influence NAB in his
article ‘In the Name of Impartial Justice,’ does not agree that NAB was
the best forum for this case. “NAB perhaps has the best investigating
powers but this was a matter between two individuals whereas NAB is supposed
to deal with cases where the government or public money is involved.” But once the investigation
had commenced under NAB, Rasool holds, “it should have been the first
forum of appeal regarding any objections to its working and not the Supreme
Court, even if the matter had started on the directions of the Supreme
Court.” NAB has been politically influenced in the past but, each time,
its own process has been followed, he says, adding that the SC should not
have been the first point of reference. Going back to the earlier
argument, if NAB was not the right forum because it was a dispute between
two individuals and not a case of public importance, the logical question
is: why delegate it to a high profile one-man commission? The legal objections to
the formation of this commission are many. Irfan Qadir’s reported
objections deal with the fact that Dr Shoaib Suddle who is serving as the
Federal Tax Ombudsman cannot be directed to head the commission because as
FTO he enjoys the same powers as the Supreme Court of Pakistan to punish any
person for contempt. This is an infringement in his domain. Qadir goes
further to suggest that the Supreme Court does not have the power to
constitute a commission of this kind. Lawyer Asma Jahangir, who
has raised objections on the selection of Shoaib Suddle for his close
connections with the chief justice’s family, also objects to the
commission on legal grounds. “The Supreme Court can form a commission for
investigation purposes and not inquiry; they are two different things. They
can’t hold an inquiry.” When asked if there is a
legal solution possible for this case, she says, “Yes they can form a
joint investigation committee, after which the due process including the
challan etc. could follow.” Saad Rasool agrees with
Qadir and Jahangir in as much as the Supreme Court could not have directed
Shoaib Suddle as FTO to head the commission, “because the powers/respect
he commands, by virtue of his adjudicatory role, are the same as that of
superior judiciary”. However, he does think that the Supreme Court has the
powers to form a commission because “in the memo case if Tariq Khosa had
agreed to head the commission, his position would have been the same as that
of Dr Suddle.” Rasool’s concerns are of
a different nature. “This is a full time job, where a lot of investigation
and paper work is involved. To ask him to finish it in one month’s time is
untenable. This is not to suggest that he cannot do it but the enormity of
the task is such that it will not meet the ends of justice in full
measure.” According to Asma Jahangir,
the scope of a review petition is narrow but, she suggests, by forming a
commission in the review petition, they have overturned the earlier
judgment. This was done by
attributing bias to the person of the attorney general and some other
persons involved in the investigation. But the allegations of bias have come
to haunt the Supreme Court too. Notwithstanding the references to Hazrat
Umer, the code of conduct was violated by the very people who wrote it.
Critics point out that the attorney general was castigated for not having
disclosed that he represented Malik Riaz in one case some years back but the
two other judges who are a permanent part of the bench headed by the chief
justice continued to hear his son’s case. They also point at the remarks
made by one of these judges that “we will not let anyone say anything
against the chief justice”. “If they have objections
to the connectivity between Malik Riaz and the AG and think there is a bias
involved, how come the two judges, who sit with the chief justice all day,
decide his son’s case? Why can’t they, for integrity’s sake, request a
separate bench from the chief justice?” asks a lawyer, not wanting to be
named. The Supreme Court says it
is not interfering in the case; it is only supervising it. Truth is that it
initiated the case. If it was not for the apex court, there would have been
no case. One is not sure if the credibility of the court is being restored
or eroded as each day passes. The Letter Text of the letter the AG
wrote to the Chairman NAB “My dear Admiral Fasih
Bokhari, This is to bring to your
notice the order of the Supreme Court of Pakistan dated 14th of June 2012.
The relevant extract thereof is reproduced below:- ‘While this suo moto
action has been brought to an end in view of the material considered above,
the learned Attorney General who has assisted us in this case is fully
abreast of all aspects of this case. It is our expectation that he will set
the machinery of the State in motion so that all those who may have
committed any illegal acts, including Malik Riaz Hussain, Dr. Arsalan,
Salman Ali Khan etc. are pursued and brought to book the with the full force
and rigour of the law’. Having regard to the
aforesaid desire of the Supreme Court, I take this opportunity to request
you to kindly proceed in this matter in exercise of the powers conferred
upon you by the National Accountability Ordinance 1999, for the purposes of
an inquiry or investigation so that all those found involved in the acts of
corruption or corrupt practices are proceeded against in accordance with
law. As the responsibility for
inquiry into and investigation of an offence alleged to have been committed
under this Ordinance rest on the National Accountability Bureau to the
exclusion of any other agency or authority, I am therefore referring this
matter to you with the expectation that you in your capacity as Chairman of
our country’s apex anti-corruption agency may constitute a broad based
team by including therein competent and honest officers from NAB, FIA and
Islamabad Police. The desirability of inclusion of experts on financial
crime from within your Bureau or any banker with expertise in forensics may
also be considered to form a part of the said team. It is hoped that the
needful will be accomplished at your earliest convenience in line with the
letter and spirit of the aforesaid order of the Supreme Court. You are also
requested to send a fortnightly progress report to this office. Sd/- Irfan Qadir Attorney General for
Pakistan 18.6.2012”
Easy
catch The much feared
National Accountability Bureau (NAB), founded by General (r) Pervez
Musharraf soon after his 1999 military coup, still exists in its original
form and so does the presidential ordinance which governs its working. No
doubt it’s a remnant of those days when he used to appear on TV screens
and warn all those who had looted national wealth to return it without delay
or get ready for imprisonment. Industrialists,
businessmen, politicians, civil servants and others were sent behind bars
and many of the accused changed loyalties to save their skin. PML-Q, as
alleged by PML-N, was formed at the time with more and more NAB suspects
joining its fold. The general perception at
that time was that it would be an impartial organisation run by dedicated
professionals and complete with the resolve to root out corruption from
society. It was proposed that the chairman, as the head of the bureau, would
have extraordinary powers and be free of legal liabilities in all actions
taken in good faith. Today, almost 13 years
down the road, NAB is perceived as a body involved in “selective
accountability” of political opponents and a tool to negotiate with
detractors. The vesting of power to appoint an all-powerful chairman in the
office of the President is something that refutes all claims of the
organisation being impartial. Ideally, the president should be an apolitical
person but both Musharraf and Zardari can be anything but this. Some of the main powers of
a NAB chairman include ordering non-bailable arrests of the accused for
inquiry and investigation for a maximum of 90 days, freezing the property of
the accused, calling for information from or examining any person and
producing any document relevant to the proceedings, requesting a foreign
state for all kinds of assistance necessary for investigation and releasing
an accused if he returns to NAB the assets acquired through corruption,
among others. Ejaz Chaudhry, Central
Vice President, Pakistan Tehreek-e-Insaf (PTI), believes NAB is nothing but
a tool to buy loyalties. “At the outset, Musharraf used it
‘efficiently’ and now Zardari is doing the same. “The way the bureau
tracked and arrested the accused in the Bank of Punjab (BoP) scam and the
National Insurance Company Limited (NICL) fraud is enough to show how it
works.” Ejaz says NAB convicts
such as Faisal Saleh Hayat and Aftab Sherpao had just two options — either
to go to prison or take over important federal ministries. “Obviously they
opted for the latter.” This is in sheer violation
of law, as Section 15 of NAB Ordinance prescribes disqualification to
contest election and to hold public office. The person convicted stands
disqualified for 10 years and he/she ceases to hold public office, if any,
forthwith. Similarly, he says, the
Chaudhrys were under pressure to remain part of the ruling coalition due to
the involvement of Monis Elahi in the NICL scam. Ejaz believes the selected
convictions and recoveries NAB makes are driven mostly by the staff’s
desire to win rewards and incentives and show they are functioning. The real
objective is far from fulfilled. He also holds the PPP
government responsible for promoting a “culture of corruption” and not
delivering on its promise to legislate and put a foolproof accountability
mechanism in place. Ejaz stresses that NAB’s
performance cannot be explained in words better than those used by its
sitting chairman Admiral (retd) Fasih Bukhari who has openly said that
corruption worth Rs 6 billion takes place every day. Recently, a major blow
came in the form of the reaction of 80 NAB officers who rejected the
decisions made by the chairman and approached the Islamabad High Court
against the appointments he had made or was about to make. Punjab Region NAB
spokesman Atiq-ur-Rehman rules out the possibility of “selective
accountability” by the bureau. The main problem, in his view, is the lack
of understanding among the general on the limitations and scope of work of
NAB. “We take up only those cases which fall under our ambit. If we do not
take up a case on this basis it is presumed something is wrong with us.” Furthermore, it also has
to be seen whether it will be possible to prosecute a particular case and
sufficient evidence is available and can be obtained to establish a charge. Rehman explains how NAB is
extraordinarily cautious in taking up cases as closing them at a later stage
is not easy at all. Whereas, he says, other departments such as Anti
Corruption Establishment (ACE) can take up or wind up a case any time. At
NAB, it’s the board which discusses a case at length and takes it up after
thorough deliberation. When asked about the
shifting of Dr Arsalan Iftikhar’s case to a one-man investigation panel,
he comments they had simply complied with the order of the respectable
Supreme Court of Pakistan. Without going into
details, he says this matter was between two individuals and the public at
large was not involved or defrauded. “Perhaps, it was finally referred to
an investigative body other than NAB for this reason.” Mostly, corruption cases
involving the politicians come under fire whereas government servants and
fraudsters are generally considered to be free. His point is that 55 to 60
per cent applications received by NAB are against government servants and 18
to 20 per cent are related to cheating of public at large. Double Shah and
forex scams are just two cases in point, he adds. Regardless of all
criticism, the sitting NAB chairman’s claim that around Rs234 billion have
been recovered by the bureau and 667 individuals convicted in 4,567
inquiries conducted since its inception is significant. But all the gains
made over the years lose credibility once the charges of “selective
accountability” surface. One of the most recent
beneficiaries of this treatment is former law minister Babar Awan who was
not questioned for allegedly pocketing Rs35 million to facilitate the prime
accused in the BoP scam. caption Fasih Bokhari, Chairman,
NAB.
The
Arsalan Iftikhar-Malik Riaz case is symptomatic of the faults within and, in
a way, contains lessons for the country and its various institutions. These
lessons may be learnt. Or they may not. It may lead to the much
needed judicial restraint. It may allow for some mechanism of judiciary’s
own accountability. It may underscore the need for one law for everyone
whether it’s Mohammad Boota, Malik Riaz or Dr Arsalan Iftikhar. It may
teach us to place value in our mainstream legal system — the euphemistic
“due process” — rather than look for alternative judicial remedies for
special cases. It may urge us to revisit
the suo motu powers under Article 184 (3) and see what is a matter of public
importance and where are the fundamental rights infringed. It may be a
reminder that certain actions of the courts can “sometimes” make the
courts appear partial in the eyes of the public and that sometimes may also
mean “all times”. It may encourage the media
and the judiciary to look within and shed all trappings of
self-righteousness. It may be a time to look
at the existing accountability mechanism available to us in the shape of NAB
and the problems it contains. It may surprise us why the two main political
parties — the PPP and the PML-N — could not, in the four and a half
years, devise an independent accountability law as per their commitment in
the Charter of Democracy. So it may also be a time for the people at large
to remind the political parties of their failure on this count. These lessons may not be
learnt. But we did get the opportunity.
opinion The News on
Sunday: The Supreme Court taking suo motu action on Arsalan Iftikhar’s
case surprised many. How did you view it? Justice (r) Tariq Mahmood:
It may have surprised many, but the verdict of June 14 on this case explains
clearly that there was a lot going on in the media at the time which was
affecting the integrity of the apex court. So, the court deemed it suitable
to address the doubts created in the minds of the people by the media —
also the social media — and took up the case with immediate effect through
suo motu. Later, the SC disposed of
the suo motu saying it’s a matter between two individuals and referred it
to the National Accountability Bureau (NAB) which, in my personal view, was
not required because it was a simple civil/criminal case which should have
been dealt with at a lower-level court. I think the SC became too
conscious when it took up the case; it didn’t even think of the relevance
of NAB in a case like this. Section 9 of the NAB Ordinance says a case must
be related to fraud/corruption in a public institution or related to
misuse/abuse of public exchequers or related to private people whose
corruption has affected the public at large, such as the case of Double
Shah. But the case of Malik Riaz
and Arsalan Iftikhar is a simple dispute between two individuals. I’d even
say that the case was not in the legal jurisdiction of the Federal
Investigation Agency (FIA). TNS: It seems that later
the court lost faith in NAB and went on to form a one-man commission. Is
this the right way to go about it? TM: As I said earlier, the
first few steps taken by the court reeked of over-consciousness. The court
did not realise that the case was not in the jurisdiction of NAB or any such
authority; it was a simple criminal case. If the court had been afforded
proper assistance at that time, this would not have happened. The SC should
have closed the case just by writing that it’s a simple, allegedly,
criminal case. Today, a commission has
been formed and the person who is heading the commission has publicly stated
that he would deal with it as required by merit. So we should wait for the
results [of the commission]. Wait for everything to come out in black and
white. Another sad thing, in my
view, is that the court inappropriately criticised the national
organisations and institutions like NAB or FIA and said that they lack the
skills or efficiency to deal with the case. These were harsh words, in my
view. In fact, there was no need for a commission. It was a simple criminal
case. TNS: How do you see the
pointing out of bias against the Attorney General in the review decision of
the court in the Arslan-Riaz case? TM: I don’t want to
comment on this. I’ll just say that the Attorney General is, ultimately, a
representative of the federal government. He has a constitutional position.
His role cannot be ignored anyway. We should try to resolve issues and deal
with the situation amicably rather than create more problems. TNS: How do you see this
case moving forward in the coming days? TM: Well, the commission
has been formed and the person heading it has seemingly accepted the
challenge, so it becomes a matter of integrity for the commission. Every
thing should come out in black and white soon. It is unfortunate that the
media should be dishing out derogatory remarks by people like Faisal Raza
Abedi instead of fair criticism on the [Arsalan-Riaz] case. But I must say this case
should end to the satisfaction of the people of Pakistan. TNS: Certain media circles
say the CJP should have stepped down after the scandal came out. Comment. TM: I believe the case
must be thoroughly investigated, in a transparent way, and everything should
be clear. I am hoping this will happen and justice will be done. TNS: Do you think there is
any tension between the parliament and the judiciary? TM: These are very
difficult times. And, I think there is a serious lack of governance. People
are deprived and aggrieved and they move court for their issues which are
purely the domain of governance. When a space is created, the court becomes
the filler. Secondly, since the
judiciary was restored on the strength of a mass movement, the common people
think it’s their right to move court for any
issue plaguing their lives. TNS: Would you buy the
general impression that judiciary, sometimes, exceeds its limits as an
institution? TM: Well, it seems that
judiciary exceeds its authority at some points. There are examples, too. The
latest, I’d say, is the formation of the commission on Arsalan-Riaz case.
I repeat that this was a simple case alleging a person of blackmailing. The
commission could have been avoided. The jurisdiction of the judiciary is
laid down in the Constitution. But, again, the gaps in governance led the
courts to fill in. TNS: Questions have been
raised on the accountability mechanism, whether judicial or executive. TM: I believe the
judiciary should be the last institution to have to deal with the menace of
corruption. This is the responsibility of the government and the executive.
Judiciary’s role comes at the far end. But the tragedy is that here you
have a government and the executive facing allegations of corruption which
raises the question of credibility of institutions like NAB itself. It was
the sitting government’s first prime minister [Yousaf Raza Gilani] who
said on the floor of the House that NAB would be done away with. Four and a
half years later, they have yet to do that. They have also failed to bring
in a new accountability law despite demands by other parties. Having said that, I must
admit that NAB is a flawed law; it gives concessions even to serving army
officers. The question of ‘whether or not NAB’ is irrelevant. First, you
need to have a substitute which the government does not seem very serious
about. Who’s stopping the government from introducing a new law of
accountability that only requires a show of a simple majority? And, to think
that the present government enjoys a simple majority. TNS: Do you think judicial
accountability has become more difficult now? TM: To some extent, it is
true that judicial accountability has become difficult nowadays. I remember
a few years ago a person came with all necessary documents and proofs
against a judge but the then sitting chief justice of the court did not take
any action on that. He didn’t even move reference against the particular
judge. Even the then president of Supreme Court Bar Association politely
reminded the chief justice of the case. But again, all roads lead to a
willing and strong parliament. Amendment in the current
judicial accountability mechanism needs the approval of the parliament, but
this does not seem possible at this point. You need a strong and committed
government/parliament with a clear mandate/consensus on these issues and a
willingness to urge political parties to reset their priorities and try to
gain public confidence on the issues. vaqargillani@gmail.com
Dissenting
notes In the Charter of
Democracy (CoD), signed in 2006, PPP and PML-N made a strong resolve to
abolish the “politically motivated” National Accountability Bureau (NAB)
and to establish an independent accountability commission headed by a
chairman to be appointed jointly by the prime minister and the leader of the
opposition with the consent of a joint parliamentary committee. All major
political parties including PPP, PML-N, PML-Q and ANP included in their 2008
election manifestos a reference to public accountability and called for
setting up an independent and impartial accountability mechanism. PPP went further and
included in its manifesto clauses of the CoD on how such an accountability
setup should be fashioned. Former prime minister Yousaf Raza Gilani, too, in
his very first speech in the National Assembly on March 29, 2008, vowed to
disband NAB and create instead an independent accountability commission as
envisaged in the CoD. A year later, a bill
originally titled ‘Holders of Public Office (Accountability) Bill,
2009’, later re-titled as the National Accountability Commission Bill (NAC),
was presented before the National Assembly on April 15, 2009. PML-N raised
several objections on the original draft introduced before the National
Assembly and rejected the bill. To raise consensus, the
bill was later referred to the National Assembly’s Standing Committee on
Law and Justice but 40 months down the line it is still lying pending with
the Committee. Law and parliamentary
experts term it a weak draft bill meant to establish a toothless commission
to tackle corruption. They think the bill adopts a more restricted model of
accountability. Under the new draft bill there is no power of the proposed
commission to freeze bank accounts and assets. The offences have been made
bailable, specialised courts have been discarded and trials should begin in
session courts. They say the vague and open-ended “good faith” clause
incorporated in the proposed bill renders the entire law meaningless. “No proceeding under
this Act shall lie against the holder of a public office for anything which
has been done in good faith or in pursuance of or in exercise of powers
vested in him or believed to be vested in him, or intended to be done at the
material time by virtue of that office,” reads the clause. National Assembly’s
Standing Committee on Law and Justice has convened more than 30 meetings
since, to discuss the bill but failed to evolve consensus mainly because of
the dissenting notes of PML-N members who have strong objections to certain
clauses in the bill. “The PML-N members had a clear mandate to ensure that
the new bill would adequately address legitimate public concerns regarding
the standard of behaviour and conduct of their representatives and public
officials, and the public demand to institutionalise across-the-board
accountability of all holders of public office, without fear, favour or
exception,” says Anusha Rahman Khan, PML-N’s member of the committee. She also says that PML-N
submitted 58 proposals and amendments to the draft bill. “We [PML-N] were
determined not to be party to a law that is self-defeating. We sought to
evolve a consensus for the establishment of a credible, judicious and
transparent organisation which had to be vested with administrative,
financial and functional independence. It required the narrow definition of
“corruption and corrupt practices” to be expanded to include all the
provisions of the existing NAB laws, and for bribery to be made a non-bailable
offence.” Most amendments proposed
by PML-N have been accepted but four “important proposals” were dropped
by the Committee by a majority vote and include that the chairman of the
proposed commission should be a serving judge of the Supreme Court, repeal
of the clause allowing the government to ask foreign countries to freeze
accounts and assets of a person involved in any corruption case and omission
of the highly unusual and objectionable provision of “good faith” from
the bill. “The agreement was reached several times on the last proposal of
PML-N but finally it was brought back and approved by majority votes of the
committee,” says Rahman. The PPP members of the
committee say the party is trying to create a consensus on the legislation
and that is the only hitch to present it before the parliament. “I do not
see it getting through the parliament during the tenure of our
government,” says Justice (r) Fakhrun Nisa Khokhar, a PPP lawmaker on the
panel, who has been deliberating the bill for years now. “Consensus looks
hard to get.” Rahman says her party
members are not looking at ‘pressurising’ the government to make their
proposals a part of the bill. “We have asked the government several times
to present the bill in its present form before the house for a vote. The
government wants us to withdraw our dissenting notes in an effort to make it
a consensus document. We are not asking the government to agree on our
points. Let the parliament decide and we will accept its decision
whole-heartedly.” Rahman also says that her
party has already been flexible on the bill issue but now it does not want
the government to get away with any delay on “this important and
much-needed law.” Other PPP members of
parliament think it is not a very well drafted law and has several
controversial clauses. “Developing consensus is not a legal
requirement,” says an MNA of PPP on condition of anonymity. “This is not
the reason why the government is not putting it before the house. In fact,
the law has become controversial and if it is passed, in the wake of the
amendments made by PML-N, the party shall take all credit for it. Secondly,
the government does not want to set up an establishment after the passage of
the bill.” According to Ahmed Bilal
Mehboob, Executive Director, Pakistan Institute of Legislative Development
and Transparency (PILDAT), a leading non-government research organisation of
Pakistan that focuses on democracy, governance and legislation, the
government does not want to bring in a powerful law on accountability.
“Along with several other lacunas, two important procedural differences
arise from the bill. The first is the automatic acquittal of those returning
misappropriated assets prior to trial. The second is the removal of the plea
bargaining and pardon procedure. Prosecution will be dependent upon the
general criminal law stated in the Pakistan Penal Code and other relevant
legislation. Investigatory powers will rest with the Federal Investigative
Agency (FIA) and various provincial bodies. In the past, these bodies have
been criticised for their poor performance in the area.” The draft legislation,
says Bilal, not only limits the scope of accountability it also fails to
meet Pakistan’s international obligations such as the UN Convention
against Corruption. “Some of the key international obligations that are
flouted by the bill relate to the limited definition of public official and
the restrictive definition of corruption with several others.” Giving credit to PML-N for
raising objections on the drafted bill, Mehboob says, “One is likely to
think that it [PML-N] is doing so for the sake of opposition but we need to
remember that if the strict laws on accountability were implemented PML-N
would also have to face them.” Mehboob also says that
several good clauses of the NAB ordinance should be made part of the new
commission. “Specialised investigation, prosecution and adjudication
should be ensured. Measures should also be incorporated to ensure
independence of commission and related agencies and to prevent political
interference.” |
|
